The opinion of the court was delivered by: SCHOONMAKER
This is an equity suit in which the plaintiff is seeking to enjoin the defendant from using a trade-mark or designation of its business, comprised of the letters "A. & P." in distinctive form, color, and design. The case was heard on bill, answer, and proofs. From these we find the following facts.
(1) The plaintiff is a corporation of the state of New Jersey and is a citizen of that state.
(2) The defendant is a Pennsylvania corporation and a citizen of that state.
(3) The amount in controversy, exclusive of interest and costs, is in excess of $3,000.
(4) The plaintiff has, since the year 1859, been continuously engaged in the business of merchandising by retail, teas, coffees, fruits, vegetables, and foodstuffs in stores, commonly known as A & P Stores.
(5) That for a period of thirty years and upwards, the business of the plaintiff company has been conducted and advertised under and in connection with a peculiar distinctive insignia or trade-mark illustrated and shown in Exhibits 3 and 4, and also in having uniform store fronts on which this insignia or trade-mark is the most salient feature.
(6) The defendant carries on a business of dyeing and cleaning, and was incorporated under the name of A. & P. Cleaners & Dyers, Inc., on May 22, 1931. Prior to that time, from about the year 1929, until the incorporation of the defendant, David Resnick used the same name in the dyeing and cleaning business in what is known as the Pittsburgh district. The defendant and its predecessor, David Resnick, about the year 1929, established in their store windows and in their advertising the same trade-mark as displayed by the plaintiff in its advertising and on its store fronts.
(7) This simulation was deliberate and intended. The evidence clearly disclosed that Resnick directed the sign painters, Kramer & Wolf, to make these signs exact copies of the plaintiff's insignia.
(8) Visual comparison of the insignia of the plaintiff with that of the defendant, exemplified in Plaintiff's Exhibit 5, reveals exact similarity in shape, color, design, and peculiar lettering.
(9) The plaintiff, on May 27, 1930, notified David Resnick, who later became the president of the defendant corporation, that the use of this insignia must be discontinued as a violation of the plaintiff's rights.
(10) There were instances in which employees of the defendant company at branch stores of the defendant company represented to customers that the defendant company was in fact a branch of, or connected with, the plaintiff company.